Judgment :- 1. This is a petition by the Vicar of the St. Francis Assisi Church, Thykal, in the Sherthallay Taluk. The petition questions the validity of Ext. P-1, an order of the 1st respondent dated 30-5-1963, and prays for a writ of certiorari quashing the said order under Art.226 of the Constitution. . 2. The 1st respondent is the Health Officer of the Sherthallay Taluk. The 2nd respondent is the State of Kerala represented by the Chief Secretary to Government, Trivandrum. Respondents 3 to 7 were brought on record in pursuance of the order in C. M. P. No. 7015 of 1963. They are persons interested in supporting the order. 3. The statute under which Ext. P-1 was issued is stated therein as the Travancore Public Health Act, 1121. Ext. P-1 is in a printed form and space is available therein for inserting the relevant section of the Act. That space was left unfilled. It is common ground that the Travancore Public Health Act, 1121, was not in force when Ext. P-1 was issued. 4. On 20-6-1963 the Health Officer-the successor to the officer who issued Ext. P-1-addressed the District Medical Officer of Health, Alleppey, as follows: "I am enclosing herewith a copy of each of the prohibitory notice dated 30 51963 and the letter dated 17-6-1965 from Rev. Fr. Dennis Arasarkavil received under registered cover. In the above letter it has been stated that the prohibitory notice dated 30 51963 served on the petitioner was issued under Act HI of 1121 and is not in order as the said Act is already repealed vide S.162 of Travancore-Cochin Public Health Act XVI of 1955. But in the office copy of the said notice copy enclosed) the year 1121 printed has been corrected to read as 1955. It is not known whether the original has been corrected or not. From the above letter it is evident that it was issued under the repealed Act. As such I think that the said notice served has to be cancelled and a fresh notice has to be issued under the Act now in force XVI of 1955. I would like to know whether it would be legal if I issue a fresh notice cancelling the one already issued by my predecessor. Request early orders in the matter." (Ext. I would like to know whether it would be legal if I issue a fresh notice cancelling the one already issued by my predecessor. Request early orders in the matter." (Ext. P-2) The reply of the District Medical Officer of Health is contained in a memo dated 25 61963. That memo reads as follows: "The Health Inspector, Sherthallay will notify the Parish Priest, St. Francis Assisi Church, Thykal. that the prohibitory notice served on him was on the strength of the Public Health Act of 1955 and not on the Act of 1121 and that if the notice on the printed form already served on him had not been suitably modified by substituting '1955' instead of the printed matter'1121', the same may be treated as modified and read as '1955' instead of 1121'. " (Ext. P-3). 5. In compliance with the memo the Health Officer wrote to Rev. Fr. Dennis Arasarkadavil on 26- 61963. That letter was in the following terms: "You are hereby requested to note that the prohibitory notice served on you on 30 51963 from this office was on the strength of the Public Health Act of 1955 and not on the Act of 1121 and that if the notice on the printed form already served on you had not been suitably modified by substituting '1955' instead of the printed matter '1121' the same may be treated as modified and read as '1955' instead of '1121'. " (Ext. P-4) 6. Ext. P 1 reads as follows: 6 A. The Deputy Director of Health Services seems to have conducted " the local inspection in accordance with the oral directions of the Director of Health Services. This fact is mentioned in the Deputy Director's report to the Director dated 20 51963. That report [Ext. P-5] concludes with the statement that he was of the opinion that the location of the cemetery at the site concerned was objectionable "from the public Health point of view". 7. On 25 51963 the Director of Health Services issued a Memo to the Assistant District Medical Officer of Health which reads as follows: "A copy of inspection report of Deputy Director of Health Services regarding location of a cemetery in Thykal in Sherthallay is forwarded to the Assistant District Medical Officer of Health, Alleppey and he is requested to issue prohibitory notice to the party." (Ext. P-6) A copy of this memo was endorsed by the Assistant District Medical Officer of Health to the Health Officer "for immediate necessary action and report". The endorsement is dated 29 51963 (Ext. P 7.) 8. Ext. P-1 followed on 30 51963. In the light of what is stated above there can be no doubt that the "satisfaction" was not that of the Health Officer himself but that of his official superiors. 9. What S.42 of the Travancore-Cochin Public Health Act, 1955, requires is the satisfaction of the Health Officer himself and not that of anybody else. That section reads as follows: "If the Health Officer is satisfied, whether upon information given under S.41 or otherwise, of the existence of a nuisance, he may, by notice, require the person by whose act, default or sufferance the nuisance arises or continues or if that person cannot be found, the owner or occupier of the premises on which the nuisance arises or continues, to abate the nuisance and to execute such works and take such steps as may be necessary for that purpose: Provided that (a) where the nuisance arises from any defect of a structural character, the notice shall be served on the owner of the premises; and (b) where the person causing the nuisance cannot be found and it is clear that the nuisance does not arise or continue by the Act, default or sufferance of the owner or the occupier of the premises, the Health Officer may himself forthwith do what he considers necessary to abate the nuisance and to prevent a recurrence thereof." 10. In Commissioner of Police, Bombay v. Gordhandas Bhanji (AIR. 1952 Supreme Court 16) the Commissioner, instead of exercising his own discretion and coming to his own conclusion, sent to the respondent in that case the following communication: "I am directed by Government to inform you that the permission to erect a cinema at the above site granted to you under this office letter .... 1952 Supreme Court 16) the Commissioner, instead of exercising his own discretion and coming to his own conclusion, sent to the respondent in that case the following communication: "I am directed by Government to inform you that the permission to erect a cinema at the above site granted to you under this office letter .... dated 16th July 1947 is hereby cancelled." The Supreme Court said: "It is clear to us from a perusal of these rules that the only person vested with authority to grant or refuse a licence for the erection of a building to be used for purposes of public amusement is the Commissioner of Police." (Paragraph 17); and "We have held that the Commissioner did not is fact exercise his discretion in this case and did not cancel the licence he granted. He merely forwarded to the respondent an order of cancellation which another authority had purported to pass. It is evident from these facts that the Commissioner had before him objections which called for the exercise of the discretion regarding cancellation specifically vested in him by R.250. He was therefore bound to exercise it and bring to bear on the matter his own independent and unfettered judgment and decide for himself whether to cancel the license or reject the objections. That duty he can now be ordered to perform under S.45". (Paragraph 26). 11. We are in the realms of a statutory nuisance. The provisions for the abatement of such a nuisance, have to be found in the statute itself. S.42 of the Act postulates the "satisfaction" of the Health Officer as the condition precedent to any order under that section. Such a "satisfaction" did not obtain in this case as the action of the Health Officer in issuing Ext. P-1 was not independent but inspired; and it must follow that the order cannot be sustained. 12. There is an affidavit by a Health Officer before us. It is not by the Health Officer who issued Ext. P 1; it is by his successor in office. 13. Burial of the dead by itself does not constitute a nuisance. "Earth", says Currie and Mearns, in their Manual of Public Health Hygiene, "is the time honoured method for the disposal of the dead in Britain. It is not by the Health Officer who issued Ext. P 1; it is by his successor in office. 13. Burial of the dead by itself does not constitute a nuisance. "Earth", says Currie and Mearns, in their Manual of Public Health Hygiene, "is the time honoured method for the disposal of the dead in Britain. Sentiment clings to the country churchyards which have at least inspired one distinguished poem, and proof that they have been damaging to health is on the whole wanting" (3rd Edition, Page 434). Burials to constitute a nuisance must come within the definition of that expression as given in S.2 (27) and S.39 of the Act. 14. Sentiment clings to the country churchyards which have at least inspired one distinguished poem, and proof that they have been damaging to health is on the whole wanting" (3rd Edition, Page 434). Burials to constitute a nuisance must come within the definition of that expression as given in S.2 (27) and S.39 of the Act. 14. S.2 (27) says: "'Nuisance' includes any act, omission, place or thing which causes or is likely to cause injury, danger, annoyance or offence to the sense of sight, smell or hearing or disturbance to rest or sleep or which is or may be dangerous to life or injurious to the health or property of the public or the people in general who dwell or occupy property in the vicinity or persons who may have occasion to use any public right' and S.39: "Without prejudice to the generality of the definition of the expression 'nuisance' contained in clause (27) of S.2 the following shall be deemed specially to be nuisances for the purposes of this Chapter: (1) any premises in such a state as to be prejudicial to health or a nuisance; (2) any pond, pool, ditch, gutter, water-course, water-trough, latrine, cesspool, drain or ash-pit, which is so foul or in such a state as to be prejudicial to health or a nuisance; (3) any animal kept in such a place or manner as to be prejudicial to health or a nuisance; (4) any accumulation or deposit of refuse or other matter which is prejudicial to health or a nuisance; (5) any factory (not being a factory governed by the provisions of the Factories Act, 1948) workshop or work-place which is not provided with sufficient means of ventilation, or in which sufficient ventilation is not maintained, or which is not kept clean or not kept free from noxious effluvia or which is so overcrowded while work is carried on as to be prejudicial to the health of those employed therein; (6) any fireplace or furnance which does not, as fat as practicable, consume the smoke arising from the combustible used therein, and which is used for working engines by steam, or in any mill, factory, dye-house, brewery, bake-house, or gass-woik or in any manufacturing or trade process whatsoever; (7) any chimney sending forth smoke in such quantities as to be a nuisance; and (8) any noise, vibration, dust, clinders, irritating smell or offensive odour produced by a factory, workshop or workplace which is a nuisance to the neighbourhood". 15. Can a cemetery come under the first item in S.39, "any premises in such a state as to be prejudicial to health or a nuisance"? S.39 corresponds to S.91 of the (English) Public Health Act, 1875. Item (1) of that section was: "any premises in such a state as to be a nuisance or injurious to health." These words came up for consideration in The Queen v. Parlby (1889-22 Q. B. D. 520). The Court said: "It is clear that the expression'premises in such a state as to be a nuisance' has not the wide application claimed for it by the respondents, who say that it is answered by any premises on which a nuisance exists' "We think it is confined to cases in which the premises themselves are decayed, dilapidated, dirty, or out of order, as for instance, where houses have been inhabited by tenants whose habits and ways of life have rendered them filthy or impregnated with disease, or where foul matter has been allowed to soak into walls or floors, or where they are so dilapidated as to be a source of danger to life and limb"; and "The very magnitude of the authority conferred upon justices by the sections under consideration affords a powerful argument that they are intended for the ordinary and comparatively simple cases comprised under the 91st section as we have interpreted it". 16. In view of our conclusion in Para.11 above it is unnecessary to decide whether the cemetery in question does really constitute a nuisance as contemplated by the Act or not. It is equally unnecessary to consider the two further contentions advanced on behalf of the petitioner. The first of those contentions is based on the admitted fact that there are no rules in existence either under the Travancore-Cochin Public Health Act, 1955, or any other enactment which is relevant; and the second, on the true scope and meaning of the word "abate" in S.42 of the Act, 17. The first of those contentions is based on the admitted fact that there are no rules in existence either under the Travancore-Cochin Public Health Act, 1955, or any other enactment which is relevant; and the second, on the true scope and meaning of the word "abate" in S.42 of the Act, 17. S. 136 of the Travancore-Cochin Public Health Act, 1955, says: "The Government shall in addition to the rule making powers conferred on them by any other provision contained in this Act have power to make rules generally to carry out the purposes of this Act.".; and S.138: (1) The power to make rules under this Act shall be subject to the following conditions: (a) A draft of the rules shall be published in the Gazette. (b) Such draft shall not be further preceded with until six weeks after such publication or until such later date as the Government may appoint. (2) All rules made under this Act shall be published in the Gazette and upon such publication shall have effect as if enacted in this Act." S. 145 of the Act is: "Any decision of the Health Officer against which an appeal is not otherwise provided for in this Act shall be subject to such appeal as may be prescribed." "Prescribed" as stated in S.2 (32) of the Act means prescribed by the Government by rules made under the Act. 18. The contention on behalf of the petitioner is that the Travancore-Cochin Public Health Act, 1955, cannot be worked until proper rules have been framed; that such rules alone can provide the necessary control over the wide ambit of the expression "nuisance" as defined in the Act and the large and arbitrary powers given to a minor functionary like a Health Officer under S.42; and that in the absence of such rules an order like Ext. P 1 should not be sustained. In this connection emphasis is also placed on the fact that the burial of the dead is a Christian obligation, and on Art.26 of the Constitution. 19. As regards the second contention mentioned in Para.16 above the submission is that the word "abate" means the suppression of something in existence and not the prohibition of something that may occur in the future. This is an interesting submission; but like the contention mentioned in the last preceding paragraph, we shall leave it for future determination. 20. Ext. 19. As regards the second contention mentioned in Para.16 above the submission is that the word "abate" means the suppression of something in existence and not the prohibition of something that may occur in the future. This is an interesting submission; but like the contention mentioned in the last preceding paragraph, we shall leave it for future determination. 20. Ext. P-5, the report of the Deputy Director of Health Services, gave two reasons for taking action. The first of those reasons was stated as follows: "Normally pollution of water supply does not take place from any sources beyond 50' if the soil is compact and hamagluous. Since the soil in this particular area is sandy it is unlikely that there is pollution of water source beyond 50' and the only tank that is pollutable because of its nearness to the cemetery is the one marked A at a distance of 45" from the cemetery." The second was that there were five residential houses within 300' of the cemetery. In dealing with the first contention the affidavit in support of the petition says: "The above tank was at a distance of 35 ft. from the portion of the property used as cemetery. This tank belonging to the church has been filled up on 20-6-1963 and a new tank adjoining the but of the said Cheera Madhavi (3rd respondent) has been dug for her use at the cost of the church. The present tank is far beyond 50 ft from the cemetery. Although the church authorities knew that the old tank was newer being used as a source for drinking water by the said Cheera Madhavi (3rd respondents; the new tank was dug up for her use so that there may not be even the least cause for apprehension that any public nuisance is being committed with regard to this matter." This is a matter for future scrutiny. 21. In the light of what is stated in Para.11 above Ext. P-1 has to be quashed and this petition allowed with freedom reserved to the Health Officer to take such further action as he deems fit subject to his own satisfaction and in accordance with the law. We decide accordingly; but in the circumstances of the case without any order as to costs. 22. P-1 has to be quashed and this petition allowed with freedom reserved to the Health Officer to take such further action as he deems fit subject to his own satisfaction and in accordance with the law. We decide accordingly; but in the circumstances of the case without any order as to costs. 22. Counsel for the petitioner submitted that his client had no opportunity to present his case against the issuance of Ext. P-1. We dare say that the Health Officer will give him an opportunity to state his contentions before any further action is taken against him.